In this controversial case, Boone was acquitted of oral sex charges.  Other charges are pending. Read our previous coverage of the Steven Boone case here which includes an interview with Boone himself.

Dr Mark Tyndall (below right) is head of infectious diseases  at the University of Ottawa. He was extensively quoted in this article  Boone trial major setback for HIV prevention, expert says from the Ottawa Citizen.

Bob Leahy: Hi Mark I wanted to ask you about the Steven Boone case in particular and then  ask you about its impact on HIV criminalization issues. I’m wondering first how comfortable are you talking about that particular case in terms of how you became to be involved in it, and how you became to be a witness for the defence.

Mark Tyndall:  Sure. I’ve been approached for a number of these non-disclosure cases and I feel it’s so important to HIV prevention that I’m quite keen to participate in the dialogue. One of the ways I can do that is to help the defence with their report writing focusing on estimates of HIV transmission risk. In the Steven Boone case I was asked to actually testify.

Let’s talk about that.  Tell me about that nature of the evidence you presented.

Well, by the time I got involved it was all over the papers, so I had already read something of the background of the case, but basically what I was asked by the defence was to write a report around the different sexual encounters of the people that had brought charges against Steven Boone and to comment on the risk of HIV transmission associated with these encounters.

So you presented expert evidence on the risk of various sexual acts?

Right.  And actually in this case the prosecution had already asked their expert witness to give their estimates and and I was asked to specifically comment on those estimations.

Now it looks from the press that you were given a pretty rough time by the prosecution?

She was fairly aggressive with her questioning.  I thought I’d be there for ten minutes – it was pretty straightforward what I thought I had to do – but I was on the stand for about two and a half hours and she was really trying to get me to say that there was a risk for HIV transmission through oral sex.  Really most of the conversation was trying to get me to say that the risk was not zero - and I had to say it probably wasn’t zero, but as close to zero as one can get

Now did you have interaction with Steven Boone at all during this process, or not?

Not at all.  In this courtroom setting, he was standing in the middle of the courtroom behind glass.  I could see who he was but I didn’t have any interaction with him.

And do you have any impressions of his demeanour and how he was behaving?

He seemed to be quite engaged in what was going on but he just looked kind of scared and didn’t seem to change his expression that much.

So did you have many discussions with his defence attorney in the course of this process?

We met on two or three occasions and had some correspondence through email.

How did you feel about the fact that you were the only defence witness in this case?

I didn’t really know that.  I knew my role as the expert witness was to comment about the risk of HIV transmission, and this was the same role I’ve had in the other non-disclosure cases I’ve been involved with.

You’ve been involved in other cases as a witness for the defence?

I’ve been prepped to go on the witness stand two or three other times and at the last minute the cases were settled or the defence decided that I didn’t need to appear in court. So this was my first time going to court but I’ve written several reports that have been used in other cases.

And how was the experience?

It was a bit nerve-wracking because I was sitting down in the witness box and she was standing in front of me all dressed up.  There is a real power differential  that I didn’t expect.   I just kept reminding myself that I’m the expert here and she’s not the expert in HIV

I want to talk now about the verdict.  What’s your reaction to the verdict?

Well the actual verdict, by the time it came out, the defence had already said that the unprotected anal sex was already non-contested.  My role in court was to argue around the oral sex encounters. He was acquitted of those charges, so the defence argument was successful on that issue. I think three of the six charges in the Ottawa area were around oral sex.  I did not think the risk from oral sex should warrant the charges.

And they accepted your defence.

I just tried to make the case that after all these years oral sex has not really been identified as a risk factor for HIV transmission.  There are several case reports that seem to be convincing, but after 50 million infections worldwide I don’t think oral sex plays much of a role.

So in relation to the guilty verdicts, and moving on to the impact of the case, what message do you think this sends to our community.  I think you’ve since spoken up in the press about how unhelpful this is.

Certainly from a public health perspective this is extremely unhelpful.  I’m really not sure if the community  - the gay men’s community or the HIV-positive community - really understand all the implications of this either.  From my perspective - a public health person who deals with HIV - I think it sends a lot of damaging and unintended messages.

Expand on that. Do you want to give your perspective on why criminalization is not helpful to public health or to people living with HIV in general?

Well I think sometimes it gets turned around that by opposing criminalization we somehow don’t think people should disclose – and that is totally opposite to what is intended. The reason that criminalization is detrimental is because it will discourage people from disclosing.  For example, I think people would be more likely to get anonymous testing if they are going to get tested.  And although it’s going to be hard to track, I really think a lot of people would think twice before they got tested in the first place. We are actively promoting testing and treating.  We want people to be tested and if they are positive they should get on life-saving treatment.  Criminalization sends the exact opposite message.

So from a public health perspective, criminalization sends a counter-productive message?

If people really understood the implications of criminalization, that every sexual encounter you’ve ever had is under the microscope and you’re at risk of somebody coming up with a non-disclosure complaint, well it’s one of the biggest threats we have to HIV prevention.

I want to move on to the community’s response to this.  I haven’t seen a lot of reaction to this verdict.  I know the AIDS Committee of Ottawa was quick of the mark and the HIV/AIDS Legal provided a comment.  David Hoe too, Jay Koornstra and a handful of other individuals.  But not much else.  I know it’s a complicated case that some may think is unsympathetic. Does this concern you though that we haven’t really come out against this verdict?

Oh yes, it’s been very quiet.  I think that the research that Barry Adam presented shows that many people that are HIV-positive support criminalization so from an individual perspective people feel that people should disclose – and that’s exactly what the public health approach should be. It’s really about creating an environment where that’s most likely to happen - and criminalization does exactly the opposite. So I think it’s quite reasonable from a community perspective that everyone who is HIV positive should be encouraged to disclose. That’s what we want to do. Un-stigmatize it. You should be quite open to disclosing your status and I think we are all working towards a place where that occurs.  Unfortunately, criminalization increases the likelihood that people will NOT disclose.

Maybe this is a case then that we are adding ethical considerations to the mix.  Typically we frame our arguments  in a legal framework and this case causes us to think more than about when criminalization is wrong and what’s entered the picture here is some ethical processing of the verdict?

Oh yes.  Really it goes beyond that to stigmatize HIV, to treat it like leprosy. It is like HIV just  appeared and we are afraid to death of it and the only response that we can come up with is to criminalize people who are spreading it.  But we are thirty years into the epidemic and we know so much about effective prevention and that’s what we should be focussing on  - and criminalization takes us back thirty years . 

So talking about going back, would you agree that the recent Supreme Court ruling was a step backwards?

Yes, at least before there was some hope where one could argue that condoms OR undetectable viral load reduced the risk to become non-significant.  But now they’ve laid it out where the only defence is that the HIV positive person will have to be undetectable on treatment AND use condoms.

Getting back to the community reaction to this case, would you like to see more advocacy around this case?

I think it’s a bit of a two–edged sword.  This is definitely an important issue and we need to be out in front of it and ensure that people are informed.   Having said that, the publicity surrounding these cases creates alarm and stigma directed at HIV positive people.  Of the top five issues in HIV prevention in Canada  - this is one of them, and if the community has nothing to say about it, well that’s just not good.

This is a complicated case.  But my own sense is that silence is not helpful.  Would you agree?

Definitely.  To date it has been the criminal justice system, driving what should be the public health agenda in HIV and to me, they are the wrong people.   The HIV community and Public Health should be setting the agenda, not the criminal justice system.

I think that’s a great place to end.  Mark, thank you so much for talking to us.

The No Doubt video (no longer available from You Tube, thanks to online uproar) was a spectacle of racist appropriation of Native culture, featuring fetishized, stereotypical, and tokenized elements of Native American culture in some kind of sick cowboy & Indians fantasy display.  It went as far as dressing up Gwen Stefani in an “Indian princess” costume, to act out a (supposedly) sexy, tied-up, helpless Pocahontas-type figure – which is ironic given that the story of Pocahontas is actually one of colonization and violence against Aboriginal women, but which has been changed and romanticized to tell a story that (apparently) appeals to non-Native people. 

This is a racist video that perpetuates colonization over a group that has long suffered from colonization - and continues to have to struggle with the ongoing effects of colonization. Do we really still have to argue about why this is offensive? 

One of my favourite books about the appropriation of Native culture is “The Imaginary Indian: The image of the Indian in Canadian Culture” by Daniel Francis.  Even the back cover of this book is revealing: “The imaginary Indian is ever with us, oscillating throughout our history from friend to foe, from Noble Savage to blood-thirsty warrior, from debased alcoholic to wise elder, from monosyllabic “squaw” to eloquent princess, from enemy of progress to protector of the environment. The Imaginary Indian has been, and continues to be… just about anything the non-Native culture has wanted it to be.” This video reveals several of these images within seconds. 

It’s disappointing that we continue to see non-Native people play “dress-up” with someone else’s culture in the public sphere, trying on some stereotypical outfits and then discarding the look when it’s no longer trendy. 

Then again, maybe it’s not surprising, given that Gwen Stefani has a history of appropriating culture and then dismissing it when it gets old. Remember when she went through her Japanese phase? She used “the Harajuku Girls” for her back-up dancers and in a series of videos – as though selecting one “race” of women was fun, exciting and exotic. It was as though the women were props, to be used for their exoticness, highlighting Gwen’s whiteness. Clearly, Japanese women are not exciting to Gwen Stefani any more, and she’s left them behind.  Now she has moved on to pretend to be Aboriginal for a while. Sorry, did I say Aboriginal? I meant Indian.  I don’t think Gwen Stefani realizes that she is playing a real person with a real culture – this is just fantasy stuff to her. 

In their apology, No Doubt noted that they are a “multi-racial” band, as though people who are not white cannot be racist, or as though having a multi-racial band protects Gwen Stefani from doing anything racist. It’s like the “but I’m not a homophobe – I have a gay friend” type of argument. 

They also noted that they did not intend to offend anyone. You know, very often these things are not intentional. Sure, some people are outwardly hateful but most do not try to hurt or offend anyone. But that’s not really the point, is it? The point is that it’s easy to be offensive or hurtful if we stay ignorant and don’t consider the meanings of our actions or words beyond how we ourselves perceive them.  The same thing applies to the phrase “it’s so gay.” Even if you don’t mean it to be offensive, you have to consider that for people who are gay, this statement is hurtful, so you should re-think the words that you use. When people are not willing to validate another person’s experience of racism (or any type of stigma, prejudice or discrimination) it just serves to the supremacy of the white (or straight) person’s experience and reinforce the experience of racism, homophobia or colonization.

So November 6th was our big election day here in The States. Americans went out in record numbers to vote! On the ballot? President, Senate, local government, legalizing marijuana, gambling and same-sex marriage.

Well, Barack Obama was re-elected president; we have our first openly gay congress woman.  Two states legalized marijuana, but the big news is we now have three more states in which gay marriage is legal! WHOOP WHOOP!

Maryland has the distinction of being one of those states; we also have the distinction of being the first state ever to win gay marriage on a ballot, meaning it was not done by politicians; it was done by the people!! Well done Maryland.

Now I have written about gay marriage here before, a couple of times I believe. And was pretty clear and adamant about my stance.  I felt very strongly that anyone wanting to get married should have the right, regardless of their gender or sexual orientation , but in the same tone, marriage was something that I had never wanted for myself.

Now that gay marriage has passed, I have come to believe that I was shamming myself all along. I think it was easier to say I didn’t want something I thought I could never have than to admit to the disappointment of not being able to have it. (I hope that made sense, it seemed to have worked when it was  in my head, anyway.)

In short this victory for gay marriage has turned out to be bittersweet for me. While I am ecstatic that my fellow gay Marylanders have the right to go out and get married, I have to admit that I have cried many, many, many tears over the last week.

I can’t help but think “what if Kyle were still alive?” And if I asked him to marry me would he say yes? What would our wedding be like? I always joked that if I ever got married it would be a beer keg and a bag of Fritos Corn Chips. The more I think about it, I would want it to be a beautiful grand affair, as beautiful and grand as the love that Kyle and I had together.

I can picture my mother in a stunning lavender taffeta gown, her hair perfect, wearing the pearls my father gave her. And my father, looking very sharp in a white dinner jacket tuxedo (hopefully) walking me down the aisle. All of my closest friends who are more family than friends, and my family of course, (those that don’t think I’m the devil for being gay anyway). I can smell the mountains of white roses, tulips, and calla lilies everywhere. And I can see Kyle standing up front in a smart cut white silk tuxedo waiting to take my hand and promise me forever. I can see it all so clearly, yet it’s just forever a dream.

But dreams are such good medicine. And perhaps one day this dream will come true, minus Kyle of course. I may yet meet someone so special that I will want them to promise me forever, and I’ll see my mother in her beautiful lavender dress, my father  in his tux (still hopefully) walking me down the aisle.

I picture my family and friends sharing with me the most special of days, and I know that wherever Kyle is on that day he will be watching and smiling, sending all his love and best wishes to me and the man standing with me holding my hand in marriage. Oh what a beautiful dream indeed.

 I wish you all so much love and then just a little bit more!! Thank you for reading. XXOO Danny  

This material first appeared on the website of the Canadian HIV/AIDS Legal Network here.

HIV non-disclosure and the criminal law:

A summary of two recent decisions of the Supreme Court of Canada, R. v. Mabior, 2012 SCC 47 and R. v. D.C., 2012 SCC 48

The information contained in this publication is information about the law, but it is not legal advice. For legal advice, please contact a criminal lawyer.

On October 5, 2012, the Supreme Court of Canada released important decisions in two cases of HIV non-disclosure; namely, R. v. Mabior and R. v. D.C. Mabior is a man who had sex with several women without disclosing his HIV-positive status. D.C. is a woman who had sex with her abusive former partner once before she disclosed her status. None of the complainants in these cases became HIV-positive. In both appeals, the Court was asked to decide the circumstances in which a person living with HIV (PHA) can be convicted of aggravated sexual assault for not disclosing his or her HIV-positive status to a sexual partner. Specifically, the Court had to determine how using a condom or having a low viral load (i.e., a low level of the virus in one’s body) can impact criminal liability in cases of HIV non-disclosure. It is now well-established that using a condom or having low viral load (usually because of treatment) dramatically reduces what is already a low risk of HIV transmission.

In its 1998 decision in R. v. Cuerrier, the Court decided that PHAs had a legal duty to disclose before having sex posing a “significant risk” of serious bodily harm (i.e., HIV transmission). At that time, the Court said that not disclosing in such circumstances is a “fraud” that makes the partner’s consent to sex legally invalid. This turns what would otherwise be consensual sex into a sexual assault. The Court further suggested that the use of condoms may reduce the risks of HIV transmission such that there may be no duty to disclose; however, they did not definitively decide on this issue. Since that time, a majority of the decisions of lower courts that considered this issue — including the Court of Appeal of Manitoba in R. v. Mabior — ruled that condom-use alone was enough to preclude criminal liability. Yet, in too many other cases, scientific evidence on HIV risks of transmission was disregarded. Some people ended up being charged and/or convicted even where the risk of transmission was exceedingly low (e.g., in cases of oral sex). The “significant risk” test adopted in Cuerrier resulted in a great deal of uncertainty and unfairness for PHAs.

The October 2012 Supreme Court of Canada decisions In R. v. Mabior and R. v. D.C., the Supreme Court of Canada had the opportunity to clarify the law in accordance with the current science of HIV transmission and treatment. Unfortunately, it failed to do so.

"But in the Court’s view, a “realistic possibility” encompasses almost any risk, no matter how small."

In fact, the Supreme Court of Canada made the law even harsher for PHAs: people must now disclose their status before having sexual relations that pose a “realistic possibility” of HIV transmission. But in the Court’s view, a “realistic possibility” encompasses almost any risk, no matter how small. Based on the Court’s decisions, people now have a legal duty to disclose their status before:

▪ having vaginal or anal sex without a condom (regardless of their viral load); or

▪ having vaginal or anal sex with anything higher than a “low” viral load (even if they use a condom).

In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.

At this point, the only sex that the Court clearly indicated does not pose a realistic possibility of HIV transmission, in terms of criminal law, is vaginal sex that takes place when a condom is used and the person living with HIV has a low/undetectable viral load. Because these decisions were about vaginal sex, it is not clear how the test of a “realistic possibility” will apply to other sexual acts (e.g., anal sex or oral sex). Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex (i.e., there is a duty to disclose before unprotected sex or when a person’s viral load is higher than “low”). It might be the case that, as with vaginal sex, there is no duty to disclose before anal sex if a condom is used and viral load is low. But at this time, we can’t say that for certain. As for oral sex (without a condom), this is usually considered very low risk, but we don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom.

"These decisions are a major step backwards from the Cuerrier decision and subsequent case law." 

These decisions are a major step backwards from the Cuerrier decision and subsequent case law. They push us further away from justice, fail to reflect a meaningful understanding of sexual autonomy, and undermine HIV prevention efforts. Just because a person would like to know what risks they are accepting when they have sex, no matter how small or what sort, one cannot logically conclude that as a society we should turn to our most blunt weapon — the criminal law — to compel full disclosure and punish non-disclosure in every circumstance.

These decisions create additional disincentives to HIV testing and hinder people talking openly with their counsellors and physicians about their sexual and disclosure practices, as medical and counselling records can be subpoenaed and used in criminal investigations. They will also disproportionately affect the most vulnerable. Access to treatment was once an issue of public health and social justice. Now it is also a criminal issue. People with inadequate access to care, treatment and support may not be able to establish a low viral load. If they do not or cannot disclose their status — including because of fear of violence or other negative consequences — they may face criminal prosecution, imprisonment and sexual offender registration. Finally, the Court has put another tool for coercion in the hands of abusive partners. This can only exacerbate the vulnerability of HIV-positive people in abusive and/or violent relationships to blackmail and threats of prosecutions and lead to more injustice.

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Are you living with HIV? Do you counsel people living with HIV? Learn more about the concrete implications of the decisions in “HIV non-disclosure and criminal law: Implications of recent Supreme Court of Canada decisions for people living with HIV (Questions & Answers)”.

This material first appeared on the website of the Canadian HIV/AIDS Legal Network here.

HIV non-disclosure and the criminal law: Implications of recent Supreme Court of Canada decisions for people living with HIV

Questions & Answers

On October 5, 2012, the Supreme Court of Canada released its decisions in the cases of Mabior and D.C. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault. This document explains what the Court’s decisions mean for people living with HIV, although many questions remain.

For more information about the decisions of the Supreme Court of Canada, see the document HIV non-disclosure and the criminal law: An analysis of two recent decisions of the SupremeCourt of Canada.

When do you have a legal duty to disclose your HIV-positive status to a sexual partner?

The Supreme Court of Canada says that you must disclose your status before having sex that poses “a realistic possibility of transmitting HIV.” But the Court also found that almost any riskis “realistic,” no matter how small.

Based on the Court’s decisions, you have a legal duty to disclose:

▪ before having vaginal or anal sex* without a condom (regardless of your viral load); or

▪ before having vaginal or anal sex* with anything higher than a “low” viral load (even if you use a condom).

* See below for more information on the duty to disclose and anal sex.

In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.

When don’t you have a duty to disclose?

The Supreme Court of Canada was clear that you do not have a duty to disclose before having vaginal sex if (1) your viral load is low or undetectable and (2) you use a condom. Both of these are required.

▪ NOTE: Your viral load does not need to be “undetectable.” A “low” viral load is sufficient. What this means remains to be defined in subsequent cases. However, based on the Supreme Court of Canada decisions, it seems that it should at least include any viral load below 1500 copies of the virus per millilitre of blood.

What is still unclear?

There is still a lot of uncertainty in the law. Because the cases before the Supreme Court of Canada only dealt with HIV non-disclosure in the context of vaginal sex, it is not clear how the test of a “realistic possibility of transmission” will be applied to other sexual acts.

What about anal sex?

Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex. In other words, you have a duty to disclose before having unprotected anal sex or when your viral load is higher than “low.” It might be the case that, as with vaginal sex, if you use a condom and your viral load is low, you don’t have a legal duty to disclose. But at this time, we can’t say for certain if satisfying both these requirements (condom use plus a low viral load) will be enough to avoid convictions in the case of anal sex.

What about oral sex?

Oral sex (without a condom) is usually considered very low risk (i.e., an estimated risk ranging from 0 to 0.04%). We don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom. We also don’t know whether it makes a legal difference if you are receiving or performing oral sex, or whether the amount of semen or vaginal fluid that the person performing oral sex is exposed to can make a legal difference.

What if you have a low or undetectable viral load AND use a condom but the condom breaks? This is a very difficult question to answer and there are several factors that you should take into account:

Although this issue was not addressed by the Supreme Court of Canada, you may have a duty to disclose in the case where a condom breaks.

▪ Disclosing your status after a condom breaks could be relevant to your sexual partner in deciding whether to seek “post-exposure prophylaxis” (PEP) with antiretroviral drugs to further reduce any risk of infection.

▪ But disclosure in such circumstances may also expose you to an increased risk of violence and/or threat of prosecutions. HIV continues to generate a lot of fear and misconception. Your partner may have a bad reaction if he or she discovers that you are HIV-positive after a condom breaks.

How can you protect yourself against prosecutions?

There is no guaranteed way to avoid being accused of HIV non-disclosure. People may lie or make mistakes about whether disclosure took place and/or whether a condom was used. But there are things you can do that may reduce the risk of criminal prosecutions or conviction for HIV non-disclosure.

▪ Tell your sexual partners that you are HIV-positive before sex, and try to get proof that you told them about your status (e.g., disclose your status in front of a witness before having sex, such as a counsellor or doctor, who can document that disclosure took place, or sign a joint document). N.B.: Please be aware that any document that would establish that you had sex prior to disclosure might work against you. This could especially be the case if you had vaginal or anal sex before you first disclosed and, at the time of that sexual act, you did not use a condom or you cannot establish that your viral load was low or undetectable at that time.

▪ Use a condom when you have vaginal or anal sex and see a doctor regularly to create a record of your viral load test results showing lowered viral load.

Other important things to know about the Supreme Court of Canada decisions and the legal duty to disclose:

▪ There is no distinction between silence and a lie. People may face criminal charges for not disclosing their status whether their partners inquired about their HIV status or not.

▪ There is no distinction based on the circumstances of a particular encounter, including the type of relationship. People may face criminal charges whatever the type of relationship they had with their partner (e.g., whether with a casual partner versus a spouse) and whether the sex was for love, fun, money, procreation or drugs.

▪ People living with HIV can be prosecuted even if they had no intent to harm their partner.

▪ People living with HIV can be charged with aggravated sexual assault for not disclosing their status. An aggravated sexual assault is a sexual assault that “endangers the life” of the other person. It carries a maximum penalty of imprisonment of life and mandatory registration as a sexual offender.

The information contained in this publication is information about the law, but it is not legal advice. For legal advice, please contact a criminal lawyer.

Editor’s note:  Boone, 31,  has two days ago been found guilty of the attempted murder of three men, three counts of aggravated sexual assault and three counts of administering a noxious substance (ie, his semen). You can read about the controversial case here.

This article written by Michael Burtch for PositiveLite.com originally appeared on PositiveLite.com on August 10, 2011.

The Canadian HIV/AIDS Legal Network provided the following comment this week:  "The Canadian HIV/AIDS Legal Network is not involved in the criminal case decided today in Ottawa and will not offer comment on the specific facts, legal arguments and resulting sentence.

In general, the Legal Network opposes criminal charges for HIV non-disclosure in cases of otherwise consensual sex, because an overly broad use of the criminal law does more harm than good. We recognize that criminal charges may be warranted in limited circumstances such as those rare occasions where an individual has a malicious intent to infect someone and there is a scientifically significant risk of transmission. 

We oppose charges for non-disclosure in cases of oral sex, where the science confirms that the risk of transmission is approaching zero. We also oppose charges in cases where people practice safer sex (e.g., use condoms) or have a low viral load, again because the risks of transmission are not scientifically significant enough to justify criminal prosecution."

As to further further reaction, The AIDS Committee of Ottawa has provided a statement which you can read following this interview.

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Michael Burtch: On April 28th I conducted an interview with Steven Boone at the Maplehurst Correctional Facility. Steven had asked that I use my pulpit as a blogger for PositiveLite.com to share his experiences about being behind bars and being charged under the criminalisation of HIV non-disclosure We agreed that questions pertaining to the specifics of his trial were off limits, and that the interview would not be posted until the conclusion of his preliminary trail on July 14th . On that date, Steven made national headlines when judge David Wake dropped all attempted murder charges again him.  He will stand trial for 21 other charges in early 2012. 

(The story "HIV infection not a death sentence" was covered in PostiveLite here. )

Michael Burtch: Can you describe your arrest? What happened?

Steven Boone: I was at a friends house just chilling when I received a phone call around midnight on May 5th/6th, 2010. The call showed up as a Private Number, it was Sergeant McGetrick of the Ottawa Police Services. She explained to me that she needed to speak to me, I asked if it could wait until the next day and she said that it couldn’t wait. I became concerned and asked her point blank if I was under arrest and she said no, she just wanted to talk, then I would be free to go. We arranged to meet at a Tim Hortons at 12:30am. I had left my car at home, so my friend drove me to the Tim Hortons. When we got there, there was no sign of the Police, so we decided to go through the drive thru and get Iced Caps. By the time we got to the window, we were surrounded by a SWAT team and I was arrested.

MB: You’ve now been in jail longer than you’ve been HIV+. Can you tell me a bit about what life behind bars has been like for you over the last 12 months?

SB: It’s been difficult. Most of the people I meet are career criminals, drug addicts, and violent offenders, since I’m none of these, and I don’t consider myself a criminal, I don’t really feel that I fit in with those around me. I’m forced to associate with people I would not usually associate with, which causes me great anxiety on a daily basis. The food served is below standards and the jail guards treat inmates like we’re cattle. This experience has been the most humiliating and degrading experience of my life.

MB: You’ve had your name, picture, sexuality, and your HIV status released by the Ottawa Police to the media. How has that impacted your experience behind bars while you await trial?

SB: It has seriously impacted my experience behind bars because I have experienced homophobia, and discrimination in relation to my HIV status, by both fellow inmates, as well as jail staff, as a result. I also spent several months in segregation as a result of the publicity in my case. I’ve also suffered from verbal death threats, physical assaults, and sexual abuse, all unprovoked, by other inmates and even corrections staff. Despite being in “Protective Custody” I haven’t felt very protected. By releasing  my name, picture, sexuality, and HIV status, the Ottawa Police put my life in unnecessary danger and caused many dangerous events to take place. Because of this, I’ve had to be moved to Maplehurst, a jail 6 hours from Ottawa, in Milton, Ontario where I can maintain a low profile and remain safe. This was something I had to request.

MB: What’s been the impact on your friends and family since the release of the details concerning your charges?

SB: It’s been difficult especially for my family, mostly because I’m still incarcerated and because of all the publicity. Everyone in my family has been very supportive. My Mom tries to make it to my court appearances as often as possible, as do my sisters. When I’m in Ottawa, they all try to visit as much as possible, unfortunately, inmates are only allowed two visits per week. Initially, the Ottawa Carleton Detention Centre was often turning away my family and friends who would try to visit. My Mom, who would drive an hour to see me each time, was especially upset by this. Another issue is that inmates are only allowed to make collect calls, which generally causes outrageous phone bills for family members who have landline telephones (as cell phones do not accept collect calls).

MB: I was shocked when you told me that Public Health served you with a Section 22 after you were already incarcerated. What kind of support are you getting around your HIV status from behind bars, agency or otherwise?

SB: As you know Michael, I’m in regular contact with the AIDS Committee of Ottawa and the staff there have been really supportive since my arrest. I have also been receiving support from PASAN (Prisoners HIV/AIDS Support Action Network) surrounding my HIV status. I have a case worker with PASAN named Mooky, whom I speak to over the phone on a regular basis and comes to visit me at the jail whoever possible. PASAN is a great resource for inmates living with HIV, and they even put out a newsletter called ‘Cell Count’ for inmates. ‘Cell Count’ brings HIV/AIDS awareness to the prison population, a well as prisoner rights information, inmates are encouraged to submit artwork, poems, and their own thoughts, there’s also a pen pal section. Anyone can check out the PASAN website at www.pasan.org .

MB: You started HIV medication while imprisoned. Have you been regularly receiving your doses? Have you been experiencing any side effects?

SB: Yes, I started HIV medication in September 2010 after asking for several months to be placed on them. I’m only actually taking one pill a day, it’s called Atripla. The only side effect I’ve experienced is vivid dreams [but] my HIV specialist says [I’ve reacted] very well to the medication, my viral load is now undetectable I am very happy to report. There have been a couple of instances while being transferred back to Ottawa where I was denied my HIV meds. I’ve brought this up with Mooky, and he assures me that the next time I am transferred, he will make sure it doesn’t happen again.

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Statement from the AIDS Committee of Ottawa.

FOR IMMEDIATE RELEASE

November 1, 2012 - Since 1985 the AIDS Committee of Ottawa (ACO) has provided support, prevention, education and outreach services from an integrated anti-racism anti-oppression social justice framework that promotes the holistic wellbeing of those living with, affected by, impacted by and at risk of HIV/AIDS in Ottawa. Given these values, ACO would like to express its discontent and trepidation given the guilty verdicts of Steven Boone on October 31, 2012.

Yesterday’s verdicts go beyond Steven Boone, as it sets an unwarranted precedent for all people living with HIV/AIDS. The severity of the charges against Mr. Boone was far too great as HIV is not the threat it once was. An AIDS diagnosis in Canada today is rare and highly treatable. Thanks to advancements in pharmaceuticals and medical treatment, PHAs (people living with HIV/AIDS) are now able to lead long, healthy, and productive lives. Yesterday’s verdicts contradict medical science and merely promote fear and hatred. These verdicts have painted Steven Boone, and peripherally all PHAs, as malicious and toxic.

These verdicts will aid to increase rates of HIV in Canada as talking about sex goes back into the closet and stigma against people living with HIV/AIDS continues to thrive. Today, 30% of people living with HIV in Canada are not aware of their status. The fear these verdicts perpetuates will discourage individuals from accessing sexual health testing and treatment. Consequently, the demonization of people living with HIV as vectors of infection only hinders HIV education and prevention programs.

ACO cannot ignore the homophobia and sex negativity that plays into this case. This case depicts the continual targeting of PHAs seen through disproportionately high conviction rates in HIV non-disclosure cases compared to considerably lower conviction rates in other sexual assault cases. This trial will only act to fuel the stigma associated with HIV/AIDS. In an ideal world, we would all be able to talk about sex and our sexual health openly and honestly, and negotiate safer sex. However, we live in a world where disclosing one’s HIV status means one is met with physical violence, stigma, and criminalization.

These verdicts, in conjunction with the Supreme Court of Canada’s recent ruling on HIV non-disclosure, has unraveled decades of work done in HIV prevention and education. Furthermore, expecting the law to replace each of our responsibility to protect ourselves and our partners is flawed logic.  HIV is a medical issue, not a legal one and Canadian law is not a replacement for a condom. The spectacle of the court case and the Crown’s arguments have provided citizens with faulty facts regarding HIV transmission and ignored the complex realities PHAs face each and every day. These verdicts are nothing to be celebrated. No one has “won”. Criminalization is not the answer.